An Early Christmas Present from the NLRB

In a 2-1 vote, the National Labor Relations Board (NLRB) published their final rule on union elections yesterday, December 21. The rule will shorten the time for employees to learn about the pros and cons of unions before an election, grant the organized labor-friendly NLRB and its hearing officers significant latitude to decide election issues, and substantially limit an employer’s ability to appeal initial election hearing findings.

The U.S. Chamber of Commerce and the Coalition for a Democratic Workplace have filed a lawsuit in the Federal District Court for the District of Columbia challenging the rule and ALFA expressed its strong opposition to the new rules.

The final rule amends existing procedures by:

Giving the hearing officer authority to limit the pre-election hearing to matters relevant to “question[s] concerning representation.” The practical consequence of this change is that employers may not know which employees are eligible to vote until after the election takes place;

Authorizing the hearing officer to decide whether to permit briefing after the pre-election hearing, including the subjects to be addressed and the timing for filing;

Consolidating the appeals process for Board review of pre-election issues and issues concerning the conduct of the election into a single post-election procedure. By eliminating the possibility of appealing pre-election matters, the time between the filing of an NLRB election petition and an election will be reduced significantly. Our best current estimate is that the time will be reduced so that there may now be approximately 28-35 days between the filing of the election petition and the election;

Ending the practice of delaying the scheduling of elections to permit time for a pre-election appeal;

Narrowing the circumstances in which a request for special permission to appeal to the Board would be granted. Such permission would be granted only in extraordinary circumstances when it appears that the issue addressed in the appeal would otherwise evade review; and

Giving the Board discretion to hear (or not to hear) and decide any appeals to the election process, whether they concern pre-election or post-election issues.

Fortunately, the new rule did not include an expedited elections provision that would have allowed union elections to take place in as little as 10 days. But that may change again…

NLRB Board Member Craig Becker (a recess appointment) will be going off the Board on December 31 leaving only two members on a five-member NLRB. The Supreme Court has ruled that the NLRB cannot conduct business with less than three members.

President Obama has announced his intention to nominate former Labor Department deputy assistant secretary Sharon Block and general counsel for the International Union of Operating Engineers Richard Griffin to the Board. All of the 47 Republican members of the U.S. Senate have asked the President to allow Senate confirmation through regular Senate order but it is more likely they will be recess appointments.

With a strong labor-friendly majority, it is probable that the Board will re-consider the most onerous provisions that were not included in the final rule. This could mean, for example, that an expedited elections process will be back on the table.

We will keep you apprised of rule changes that will affect your strategic planning and day-to-day operations. In the interim, we will continue to support and actively participate in lobbying efforts with the U.S. Chamber of Commerce and the Coalition for a Democratic Workplace to support measures limiting what we consider to be a serious overreach of the NLRB and the Department of Labor.